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fendants Lindsay and wife pleaded that any , L. 948; 31 Cyc. 819; Tombler v. Palestine extensions given to plaintiff by said Evans Ice Co., 17 Tex. Civ. App. 596, 43 S. W. 896; on the $400 note were without their knowl-Gage v. Riverside Trust Co. (C. C.] 86 Fed. edge and consent and not binding on them, 984), where the contract of bailment gives and that therefore they should be discharged the pledgee the right to sell the pledged aron their plea of four-year limitation. They | ticle in case the debt is not paid, but not so

. pleaded limitation also by exception. They where the pledgee must call upon the courts further pleaded payment in full to Wm, M. to establish and enforce his rights. Evans and his executrix, Mrs. Minnie E. [2] The question to be determined is whethEvans Ivey. From the judgment in favor of er or not the $400 note dated June 27, 1905, plaintiff as against Mrs. Minnie E. Evans could be successively extended by parol so Ivey, in her individual capacity and as in-as to prevent the running of the statute of dependent executrix, and against Nelson G. limitation. Article 5705, V. S. Tex. Civ. Mebane, with the writ of foreclosure as Stats., is as follows: against lots 2 and 3, owned by Mebane, and

“When an action may appear to be barred by in favor of defendants Mrs. Mattie Jackson, justness of the claim made subsequent to the

a law of limitation, no acknowledgment of the H. L. Vaughn, the Lindsays, and the other time it became due shall be admitted in evidence defendants, plaintiff has appealed.

to take the case out of the operation of the law, [1] On April 4, 1907, Poythress executed a unless such acknowledgment be in writing and release to lot 6, sold by Evans to the Lind- signed by the party (sought] to be charged there

by." says on June 27, 1905, but by said instrument

In Wells v. Moor, 42 Tex. Civ. App. 47, 93 the lien existing on the other lots covereds. W. 220, it is said: by the deed of trust was specifically stated

"The new promise pleaded was a forbearance to remain in full effect. The evidence sup- to sue on the part of plaintiff and a promise to ports the conclusion that the Lindsays had pay the account at a later day on the part of paid in full the amount of the said $765 defendant. The subject of the transaction was

. The promise of forbearance note given by them to Evans, and hypothe-on the part of plaintiff was based on no considcated by Evans to Poythress as additional eration, and did not suspend his right to sue. security for Evans' debt to him, the payments after a debt is due must be in writing in order

Under the statute any acknowledgment made being made to Evans during his lifetime, and to extend the bar. To allow plaintiff's contenafter his death, on, to wit, December 22, 1912, tion would amount practically to an annulment such payments were made to the executrix ; 1 81 Tex. 94, 16 s. W. 790, cited by appellant, is

of the statute. The case of Heisch v. Adams, a receipt of payment in each instance being not decisive of the question. The principle degiven. The evidence further shows that the cided in that case is that a verbal contract made inventory and appraisement filed by the ex- after the due date and before the bar of a note, ecutrix showed a balance due on the Lind-which amount to a novation, takes the place of

and embodying new elements of consideration say note of $269.50. Plaintiff's testimony the note forming in part the basis of the new tended to show that prior to the filing of contract, and the statute runs from the due date the inventory and appraisement Lindsay was of the new contract. The facts here alleged fall

far short of those in the case cited. In Hownotified by Poythress or his attorney that ard v. Windom, 86 Tex. 560, 26 s. w. 483, it he held the note against lot 6, and that there is held that the acknowledgment or new promise was a balance due thereon of about $175. is a new cause of action which must be de

clared on. In Gibson v. Irby, 17 Tex. 174, it Lindsay denied ever having received such

was held that a verbal agreement to extend the notice from Poythress or his attorney, but due date of a note, the debtor agreeing to pay we do not think the conflict of testimony is the principal and interest on that date, did not material, since the controlling question is bind the holder of the note not to sue sooner; whether or not the original debt of Evans without consideration passing from the debtor.”

the reason given being that the contract was to Poythress evidenced by the $400 note was

See Neyland v. Neyland, 19 Tex. 423, 430; barred by limitation, for before Poythress San Antonio, etc., Loan Ass'n v. Stewart, 94 could recover on the collateral note, he Tex. 441, 448, 61 S. W. 386, 86 Am. St. Rep. would have to establish in court the original 864; Russ v. Cunningham (Sup.) 16 S. W. debt evidenced by the $400 note to secure 446; Lowe v. Dowbarn, 26 Tex. 507, 510. which the $765 note was given. In order to Appellee cites a number of cases, to wit, enforce his security, the plaintiff would be Casey-Swasey v. Anderson et al., 37 Tex. Civ. required to go into court, and would there. App. 223, 83 S. W. 810, Carter-Battle Co. by necessarily bring himself within the oper- v. Clarke, 91 S. W. 882, Fambro v. Keith, 57 ation of the statute of limitation. Limita- Tex. Civ. App. 302, 122 S. W. 40, Wright v. tion affects the right to enforce a claim Deaver, 52 Tex. Civ. App. 130, 114 S. W. 165, through the medium of the courts, and not and others, in which a parol agreement by the necessarily the validity or justness of said principal, without the consent of the surety, claim. It closes the doors of the tribunal to to extend the payment of a debt was held the tardy claimant who would seek the por- binding on the principal, and therefore to tals of the courthouse to enforce a right or relieve the surety, but these cases do not deal to collect a claim in the assertion of which with the question of limitation, nor dispute he has been guilty of undue laches. It is the rule that in order for the plaintiff to retrue that a pledge may be subjected to the cover by reason of the parol promise he must

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original instrument in writing. In the in-2. MASTER AND SERVANT O 330(3)-TORT OF stant ca se plaintiff did not seek to recover on


SUFFICIENCY OF EVIDENCE. the parol promise, but on the note itself. The

In such action, evidence held sufficient to last extension of interest, as pleaded, was justify the jury in'finding that the shot which made on June 27, 1912. The suit was filed injured plaintiff was not fired maliciously or August 21, 1914, more than two years there with intent to shoot plaintiff, but merely to inafter. Hence any action on the oral contract duce him to leave the railroad yards; the watchafter. Hence any action on the oral contract man not knowing and having no ill will against alleged would have been barred by the two- plaintiff. year statute, even had plaintiff declared there. 3. TRIAL 350(6)—SPECIAL ISSUES-TORT OF on. But he did not do so. Hence we conclude SERVANT. that the original note for $400, given on June

In an action against a railroad and its 27, 1905, was at the time of the suit barred watchman for shooting plaintiff in the railroad's

yard, the question whether defendant watchman by the four-year statute of limitation, and shot plaintiff intentionally presented a pertithat the Lindsays could successfully plead nent and material issue to be submitted, since the statutes. In this connection it might if he shot to gratify a private grudge, and not be noted that there had been no formal as- pursuant to his duty to guard the railroad's

. signment or transfer of the $765 note from property, the latter was not liable.

4. MASTER AND SERVANT Om 304 TORT OF Evans to Poythress put on record. Evans

SERVANT- LIABILITY. merely indorsed the note in blank and de

If a railroad's yard watchman, within the livered it to Poythress. So the Lindsays had general scope of his employment to protect the no constructive notice of the ownership by reasonably and negligently in the performance of

railroad's property from depredation, acted unPoythress of the note in question. The actual his duties as he saw them, the railroad was notice was denied by A. Lindsay, as before liable for any injury suffered by another thereby, stated.

whether the watchman acted upon reasonable [3] With reference to the defense of Mrs. appearances or not; he having been made the Mattie Jackson and H. L. Vaughn, no ven- judge as to when it was necessary to shoot. dor's lien notes from Mrs. Jackson's predeces- 5. TRIAL @ww115(2)—ARGUMENT OF COUNSEL


SPECIAL ISSUES. sor in title appear to have been executed to

The statement of plaintiff's counsel in closEvans and delivered to Poythress. The rec- ing argument to the jury that the reason that ord does not disclose, so far as we have been counsel for defendants wanted the jury to anable to determine, whether any vendor's lien swer the first question “No” was because they

knew that, if the jury answered the question was retained by Evans or not. It was agreed "No," it would end the case, was improper, as that Mrs. Jackson and Vaughn, claiming where special issues are submitted it is the 'sinunder G. W. Jackson, deceased, had held pos-gle duty of the jury to find the facts in support

of the issues. session of lot No. 7, block No. 1, since the 4th day of August, 1908; that they proved actual 6. APPEAL AND ERROR Cm1060(1),HARMLESS

ERROR-ARGUMENT OF COUNSEL. possession of same by deed from Evans and

Impropriety of plaintiff's counsel in arguing wife to G. W. Jackson. No pleading of plain- that defendant's counsel wanted the jury to antiff suggests any right of foreclosure against swer the first special issue negatively because the Jackson lot, unless such right be shown they knew that if the jury so answered the is

sue it would end the case was harmless, where by reason of the $400 note and the deed of the jury must have gathered on trial the legal trust executed by Evans to secure the same. result of a negative finding on the issue. Hence as to this lot, the right of foreclosure 7. APPEAL AND ERROR 1033(5)-ERROR FAwould be barred, by reason of the statute VORABLE TO APPELLANT-INSTRUCTION. which barred the debt from Evans to Poy

In an action for personal injuries, where all thress. No complaint is made as to the judg- question of permanent injury were such as were

damages allowed by a charge submitting the ment against Mrs. Ivey individually and as allowable under the law whether the injury was executrix and against Mebane. The judg- permanent or not, the charge that plaintiff ment in this respect will be left undisturbed, might recover such damages only on proof of and otherwise will be affirmed. All assign- permanent injury was favorable to defendant. ments are overruled.


CESSIVE VERDICT. Affirmed in part, and undisturbed in part.

In an action against a railroad and its yard watchman for shooting plaintiff in the calf of the leg, verdict for plaintiff for $2,500 was not

excessive. GALVESTON, H. & H. R. CO. et al. v. FLEM

Appeal from District Court, Galveston ING. · (No. 7552.)

County; Clay S. Briggs, Judge. (Court of Civil Appeals of Texas. Galveston. Suit by Andrew J. Fleming against the March 27, 1918. Rehearing Denied

Galveston, Houston & Henderson Railroad April 25, 1918.)

Company and another. From a judgment 1. MASTER AND SERVANT 330(3)-TORT OF for plaintiff, defendants appeal. Affirmed.


Baker, Botts, Parker & Garwood and McIn an action against a railroad and its Means, Garrison & Pollard, all of Houston, watchman for the latter's shooting of plaintiff, and Jno. L. Darrouzet, of Galveston, for apevidence held sufficient to support the jury's finding that the watchman was acting within pellants. Frank S. Anderson, of Galveston, the general scope of his authority.

for appellee. em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

LANE, J. This suit was instituted by ap-, salary of $65 per month, and that he was pellee, Andrew J. Fleming, against the Gal- such watchman on the night of February 20, veston, Houston & Henderson Railroad Com- 1917, when appellee was shot, and from the pany and R. J. Stanley to recover damages time of his employment to the date of the for alleged personal injuries.

trial had continuously been in its employThe plaintiff alleged that on the 20th day ment as such watchman and guard. It was of February, 1917, said railroad company further admitted that Stanley was the man had laid and was maintaining its railroad who shot the plaintiff. tracks in, upon, and along Postoffice street, The undisputed evidence shows that while a public street and highway in the city of it was a fact that the point or place at which Galveston, Tex.; that on said date the said appellee was shot by Stanley was on Postrailroad company had in its employ one R. office street in the city of Galveston, it was J. Stanley as watchman and guard over its also within the yards of the defendant railproperties; that on said

that on said date while he road company, said street being closed at (Fleming) was passing along said public that point by virtue of a city ordinance; and street and highway and along one of the that where said street entered said railroad railroad tracks of said company, said Stan- yards said company had placed a sign which ley, while acting within the scope of his reads: employment and instructions, carelessly, “This is the property of the G., H. & H. Railnegligently, willfully, and maliciously as- road Company. Persons entering upon or crosssaulted and shot him (Fleming) in the leg, ing are trespassers, and assume all risks.”

. thereby seriously and permanently injuring

The undisputed evidence also shows that and damaging him, for which he prayed judg- for about three years appellee had passed ment in the sum of $2,500 actual, and $2,500

over and

among appellant's exemplary, damages. Defendant answered by tracks and through its yards, and that many general demurrer and general denial. The

persons had so passed day and night for question of exemplary damages was not sub

many years. Appellee Fleming testified that mitted to the jury, and we shall, therefore, on the night and at the time he was shot not further refer to this matter.

by Stanley he was walking along the track The case was tried before a jury upon spe- of the defendant railroad company; that he cial issues submitted to them, to which they met a man (who later proved to be Stanley) made the following answers: (1) That the

(1) That the who passed by him, and that after the man defendant Stanley, in the shooting of the had passed him the man said, “Stop there!" plaintiff, was performing an act within the that he did not stop, but as he thought it scope of his employment, and in furtherance might be a burglar he continued to walk on, of his duties for which he was employed by

and that the man fired on him; that after the defendant railroad company; (2) that

the man fired he (Fleming) continued to the defendant Stanley shot the plaintiff un.

walk on off from him, but looked back to intentionally; (3) that in shooting the plaintiff, the defendant Stanley was guilty of neg- then see the man, but that the man then

see what the man was doing; that he did not ligence, (4) which proximately caused plain

ran around in front of him and shot him tiff to sustain the injury as alleged by him; and (5) that the amount of damages that in the calf of the left leg. He also testified would be fair and reasonable compensation that when he was shot the man said, “I am for plaintiff's injuries was $2,500. Upon the the watchman; you get off the track here;” verdict a judgment was rendered in favor of that he could not remember whether h plaintiff against both defendants for $2,500, (Fleming) said anything or not; that he did from which the defendants have appealed.

not know what became of the man after he [1] By the first, second, and third assign- was shot; that he left him immediately; ments it is insisted that the court erred in and that he (Fleming) lay on the track

He not instructing a verdict for defendants, as about half an hour after being shot. requested by the defendant railroad com- further testified that the first shot fired by pany, for the reason that there was no evi

the man was after he told him to stop; that dence to prove that defendant Stanley, at the this shot passed close to his head, but did

, time he shot plaintiff Fleming, was acting not hit him; that he then turned around to within the general scope of his authority as see where the man was, and as he turned a watchman and guard for the defendant back the man shot him in the left leg; that railroad company, and because the testimony at the time he was shot he had turned failed to show that Stanley, in shooting around to face the man, and then the man plaintiff, was acting in discharge of any duty shot him; that the shot that struck him he owed to the defendant railroad company. was fired downward; that he never knew We do not think there is any merit in the that the railroad company kept a watchman contention of appellants.

in the yards. Neither of the defendants It was admitted in evidence that the de- introduced any evidence, but closed when the fendant R. J. Stanley was employed by the plaintiff closed his evidence. defendant Galveston, Houston & Henderson The case of Baker, Receiver, v. Ives, reRailroad Company as a watchman and ported in 188 S. W. 950, is a case in which guard in its yards on February 2

were very similar to the nature and facts The contention of appellant cannot be of the present case, except that one Watts sustained. We think the holding in the in that case testified that he employed one case cited is applicable to this case.

While Grace as watchman and guard in the yards it is true that in the Ives Case the instrucof the International & Great Northern Rail-tion to Grace, the watchman, to watch the . way Company at Palestine, Tex., and further property of the railroad company and to artestified as follows:

rest persons only when he caught them in "I instructed Mr. Grace at the time of his em- the act of depredating on such property was ployment to watch out for these merchandise expressly given, we think a fair inference cars, never making any arrest of anybody unless is that when Stanley was employed by the "he actually caught him in the act. I also in structed him that the main line, south, west, and appellant railroad company to watch its north, had become a public thoroughfare from property he was impliedly instructed to do long usage and to let travelers pass along there, such things as he might in his discretion but any one he caught meddling and depredating to put them out. * * He had no authority think necessary to protect the property of whatever to stop or question any one passing his employer. Any other conclusion seems along through the yards in the regular way; to us unreasonable and unsound. No one that was against instructions. I employed him could reasonably conclude that the railroad [on] the 11th day of November, 1914, as night watchman, Palestine yard, because so many cars company in the present case employed Stanwere being broken' open and robbed and bur- ley to go in and upon its yards and simply glarized, and goods carried away, and it was watch persons who were depredating upon necessary on account of depredations. Yes; I have heard of several cases of people or threatening to depredate upon its propasking the railroad employés for matches at erties, but to the contrary, reason would night, and trying to get their watches or rob force one to the conclusion that Stanley's them; that is a favorite way and an old way. duties were not only to watch such property, Yes, it was left to Mr. Grace's judgment on the instructions I had given him to decide whether a but that he was to take such necessary acman was out of the way, or a suspicious looking tion as would protect the same from deprecharacter, or not."

dation, We therefore conclude that the In that case the court said:

court did not err in submitting the question "Under these authorities, we think it clear to the jury, as to whether Stanley was actthat the trial court properly submitted the issue ing within the general scope of his authority. of liability of appellants for the act of Grace in We also conclude that there was sufficient making the assault upon appellee. If, in fact, the appellee had been a thief or depredator upon evidence to support the finding of the jury the property of the appellants, or if his con- that he was so acting. We therefore overduct had been such as to lead Grace reasonably rule the first, second, and third assignments. to believe that he was such, the latter would certainly have been acting within the scope of

The fourth assignment complains of the his employment if he used all reasonable and action of the court in submitting the quesproper means to protect the company's property. tion to the jury as to whether or not Stanley He was undoubtedly charged by appellants with was performing an act within the scope of the authority, and it was his duty to exercise the discrimination necessary to distinguish be- his employment, and in furtherance of his tween burglars, thieves, depredators, and inno- duties for which he was employed when he cent persons, and to make arrests when called shot appellee. What we have said under for by the circumstances, and to determine the the first, second, and third assignments disdegree of force necessary to be exercised. If, the first, second, and third assignments disthrough want of proper care or the exercise of poses of this assignment. It is therefore the proper discrimination, he mistook appellee overruled. for a depredator or person who otherwise should

[2, 3] By the fifth assignment appellant be dealt with in the manner in which he did deal with him, he was certainly acting within insists: the apparent scope of his employment, and the That the trial court erred in submitting to the appellants must be held liable for any want of jury the following question, “ 'Did the defendproper discrimination or improper conduct of ant R. J. Stanley shoot the plaintiff intentionalhis in that respect.'

ly?' for the reason that there was no evidence

to justify the conclusion or finding that defendAppellant contends that the opinion in ant Stanley shot the plaintiff unintentionally, the Ives Case is not applicable to the pres- and all of the evidence introduced in this case ent case, because in that case there was upon the issue shows without dispute that deent case, because in that case there was fendant Stanley's act in shooting the plaintiff proof showing what the watchman's duties was intentional and not accidental.” were under his employment, while in the

We cannot agree with the contention of present case the evidence as to what the

appellant. Appellant was contending that in watchman's duties were is wholly silent. accosting and shooting plaintiff, defendant That in that case it was shown that an in- Stanley was not acting within the scope of nocent man was injured by Grace by reason his employment, but that in doing so he had of the failure of the latter to use ordinary turned aside from the duties imposed upon

using the authority conferred upon him and with malicious intent shot plaintiff. him to discriminate between depredators and There was no evidence, either direct or cirinnocent persons. Here it was not shown cumstantial, that Stanley held any malice or that any authority of discrimination was ill feeling toward the plaintiff, or that he conferred upon Stanley, or that his act was knew the plaintiff, or had ever seen or heard done in the accomplishment of any object of him before the shooting;, nor was there for which he was employed.

any attempt to show such facts; nor was

there any evidence remotely showing that [5, 6] In his closing argument counsel for Stanley and the plaintiff had quarreled at the plaintiff said to the jury: the time of the shooting, but upon the con- “The reason that they [counsel for defendants] trary the evidence shows that when Stanley want you to answer the first question 'No' is besaw the plaintiff in the yards of the defend- cause they know that, if you answer that quesant railroad company he called to him and tion 'No,' it will end this case.” told him to stop; asked him to stop before

After these remarks were made to the jury he fired the first shot; that the plaintiff con- counsel for appellant objected thereto, astinued to walk off from Stanley along the signing as a reason for such objection that railroad, and that to impress upon plaintiff such remarks were improper and prejudicial that he must leave the yard Stanley fired the to the rights of defendants, in that such reshot; that after said shot was fired the marks were in effect advising the jury of plaintiff turned toward Stanley, who said to the effect and result of the answer they him, “I am the watchman; you get off the might make to the question as to whether or track here," and was shot by Stanley in the not Stanley was acting within the scope of calf of the left leg. We think there was

We think there was his employment in shooting appellee, Flemsufficient evidence to justify the jury in find- ing. After this objection was made counsel ing that the shot that injured the plaintiff for appellee repeated said remarks. ' The was not fired either maliciously or with the court did not stop counsel'in such argument, intent to shoot plaintiff, but that the same nor give any instruction to the jury relative was fired for the purpose of inducing plain- thereto; there being no request for such intiff to leave said yard, and not with the malicious intent to wound and injure a man these remarks of counsel for appellee the

struction by appellants. Appellants make whom he did not know, and against whom grounds of their seventh assignment.

, he had no ill will. We think the question

The argument of counsel complained of submitted, of which complaint is made, pre-was improper, and the court should have sented a pertinent and material issue, that stopped it when attention was called to it. there was evidence calling for its submission, In cases where special issues are submitted, and that the trial court properly submitted it is the sole duty of the jury to find the the same. The fifth assignment is overruled. facts in support of the issue submitted, if [4] By the sixth assignment complaint is any. The jury have nothing to do with the

4 made of the refusal of the trial court to sub- effect of their finding on the parties to the mit to the jury the special issue requested suit. They should not be concerned in the by appellant, as follows: “Was the plaintiff

, Fleming, at and just before result of such findings. G., H. & S. A. Ry. “Was the plaintiff, Fleming, at and just before Co. v. Hodnett, 182 S. W. 7; Fain v. Nelms, the time that he was shot by the defendant Stan. ley, doing any act that would reasonably appear 156 S. W. 281. In the case last cited the to defendant Stanley that the said Fleming was court said: about to do or was doing any act or thing that

“We have no hesitation in saying that the would interfere with the use of said property or railroad yards, or to injure, destroy or depredate argument was, in the circumstances, improper, the property of the defendant Galveston, Hous- and that the court should have stopped it when ton & Henderson Railroad Company, or to pre

attention was called to it, and should have invent the railroad company from the 'free use of structed the jury to disregard it. The jury, as the same?"

triers of the facts solely, had nothing to do

with the legal effect of their findings. This was We have already held that the implied du- a matter which could not properly concern them. ties of Stanley were not only to watch the They were only to find the facts. The argument properties of the railroad company, but con- consider, in finding this fact, what the legal ef

came very near a direct invitation to the jury to

, templated that he would do such acts as rea- fect would be. The argument should not have sonably appeared to him to be necessary to been made, nor should the court have allowed it protect said properties from depredation of to be made, and to give tacit approval of it by others. He was clothed with the duty of upon the question, however, as ground for re

disregarding appellant's objection. In passing determining when he should act for the pro- versal, its effect on the jury must be considered, tection of said property, and if while þe was and upon this point it must be assumed that acting within the general scope of his em- during the course of this trial, amid the strenuployment he acted unreasonably and negli- ous conflict between counsel as to the time ap

peliee's adverse possession began, and the gently in the performance of his duties as he amount of evidence on that issue, it must have saw them, his employer was liable for any been a remarkably stupid juror who would not injury suffered by another by reason of such have gathered what would be the legal result of

a finding on this issue. We are inclined to the unreasonable and negligent acts. So then it opinion that counsel only told the jury what was an immaterial issue as to whether Stan- they already knew, and we cannot believe that ley acted upon reasonable appearance or not. they disregarded the evidence and charge of the He was made the judge as to when it was These improper remarks, we think, ought not to

by .

, necessary to act by the defendant railroad bring upon appellee the penalty of a reversal.” company, and it is liable for his mistaken judgment when the same results in injury We specially adopt the last portion of the to others. We do not think the court erred foregoing quotation as a reason why we rein refusing to give to the jury the special fuse to reverse the judgment of the trial charge, the refusal of which is complained court in the instant case on account of the

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